Mr. Speaker, I am rising to respond to the question of privilege raised by the hon. member for Skeena—Bulkley Valley on Thursday, April 30.

As the Parliamentary Secretary to the Leader of the Government in the House of Commons indicated, for our part, we wanted to look into the matter and ascertain facts. It is important to have facts in cases like this, and we thought we should have them before we came back to the House.

We have done that, now, Mr. Speaker, and I can tell you that the public safety minister's office has advised that the Royal Canadian Mounted Police reviewed the surveillance camera footage and determined that the green bus in question was indeed delayed for some 74 seconds on Thursday morning.

It is my submission that this case, which amounts to a mere momentary delay, does not rise to the threshold required for the Chair to find a prima facie case of privilege.

Before tackling the main issue in the question of privilege, I want to address, briefly, a second issue which the hon. member for Skeena—Bulkley Valley offered up during his remarks, namely, the motion adopted by the House on February 16 breached the House's privilege to regulate its own internal affairs. I cannot see how a motion to regulate our own internal affairs, properly based on notice, debated and adopted offends, the very privilege under which it was made. If anything, it was actually a vindication of the privilege of this House.

The hon. member for Skeena—Bulkley Valley did, however, correctly cite page 110 of House of Commons Procedure and Practice , second edition, which says:

Incidents involving physical obstruction...as well as occurrences of physical assault or molestation have been found to be prima facie cases of privilege.

However, the question becomes, what sort of physical obstruction ought to give rise to such a finding?

In my view, a momentary delay such as Thursday's is of such a de minimis character that it does not warrant your finding, Mr. Speaker, of a prima facie case of privilege. Members opposite might scoff, but the precedents bear out this line of thinking, if you will indulge me, Mr. Speaker.

Ruling on a question of privilege related to the Parliament Hill visit of then Israeli foreign minister, Mr. Speaker Lamoureux said, on May 25, 1970, at page 7255 of the Debates, in determining that there was no prima facie case to be found:

The report states that no one, that is, no member of the House and no member of our staff, was denied admission during the period. It is recognized, however, that there might have been a momentary delay if a member had to be identified...

In any event, I think I should reiterate the essential point made in the report submitted by the Sergeant-at-Arms, that in fact no member was denied access to the building on the occasion in question.

The precedent decision of your esteemed predecessor, Mr. Speaker, stands for the proposition that there was a distinction to be drawn between a denial of access, which I will admit breaches the privileges of the House, and a momentary delay, which does not. In other words, a brief delay, one of a de minimis character like Thursday's, is not a breach of our constitutional rights.

Further distinction was drawn in the case of the 2004 visit of the American president. In its 21st report, presented on December 15, 2004, the Standing Committee on Procedure and House Affairs concluded that:

The denial of access, and significant delays, experienced by Members of the House constitute a contempt of the House.

Therefore, a delay can give rise to a contempt, but only if it is a significant delay.

The report, which was concurred in on May 17, 2005, offers this context, at the 13th paragraph:

According to Mr. Blaikie and others, Members were halted, and refused access across the security barriers, even after showing their House of Commons pins and identity cards. Although, in most cases, Members were eventually able to access the Hill, a number of them experienced substantial delays and some missed votes in the House. The problem was exacerbated by the fact that other persons were allowed to cross the security lines at the relevant times...

Put simply, a significant delay would be much greater than the one which was faced last week, certainly one with some extended amount of time or notable consequence. Unlike the 2004 case, the hon. member for Skeena—Bulkley Valley did not miss the vote, but I will come back to that in a moment.

In his own submissions, the hon. member made reference to a prima facie case of privilege arising on March 15, 2012, when the Israeli prime minister visited Parliament Hill. Let me complete the reference to that case by citing the 26th report of the Procedure and House Affairs Committee on this incident, which was presented to the House on May 31, 2012. This conclusion is set out in the 21st paragraph:

The Committee, after a thoughtful consideration of the matter, does not believe that this is an appropriate case for finding a breach of parliamentary privilege.

The September 2014 case of the hon. member for Acadie—Bathurst was also presented on Thursday as an authority on point. The procedure and House affairs committee has recently finished its work on that matter. In its 34th report, presented on March 26, the committee did not state any finding of contempt. Indeed, what the committee did say, at page 8, was:

Having given careful review to the events of September 25, 2014, the Committee considers that the officers managing both vehicular and pedestrian traffic during the visit of the President of Germany, in a time-sensitive context where safety was a paramount consideration, were simply attempting to do their jobs within procedures they had no control over.

The fact that came out during the committee's study of this issue was that the hon. member for Acadie—Bathurst was delayed for no more than 77 seconds, while the member of the Royal Canadian Mounted Police ensured the safety of his person, as the high speed motorcade of the German president was approaching the very street that the hon. member was endeavouring to cross. Nonetheless, no finding of contempt or breach of privilege, however technical, was found in this unanimous committee report.

I will concede that the two reports that I just cited from, 2012 and 2015, were not concurred in by the House, but that should be no barrier to the persuasive authority they offer. Joseph Maingot, at page 218 of Parliamentary Privilege in Canada, second edition, writes:

The Speaker may refer to and rely upon decisions of the Chair in respect of matters that were found to be prima facie case of privilege, and in respect of reports from the privileges committee that were never adopted by the House.

At page 219, he adds:

—it is incorrect to say that these same reports...[not adopted by the House] are not the views of the House itself, notwithstanding that the House normally only formally adopted the motion to refer the prima facie case to the committee.

Since the committee declined to report that the 77 second delay was a contempt or a breach of the privileges of the House, largely because it was a mere momentary delay, I cannot see how the 74 second delay complained of by the hon. member for Skeena—Bulkley Valley somehow is.

I appreciate that when such a delay occurs during bells, it can create anxiety. As such, members in their anxiety, uncertain when the delay will end, tend to find the delay as being much longer than it is. Certainly, that is their perception. However, 74 seconds is still within a range of a stop light signal cycle and, as such, it is quite short. The difference is that with a stop light, we know it will change. In a circumstance like that occasioned by the hon. member, there is an anxiety period because he does not know that. That being said, it did remain a de minimus 74 seconds short delay.

The bus was, as he described, sitting in a left-turn lane on Wellington Street. Had the bus been stopped at an intersection's traffic lights, would he have wanted the city of Ottawa found in contempt because every light was not turning to green for the NDP finance critic? I hope not. Had the green bus stopped because of one of the stop signs posted on Parliament Hill, should the Department of Public Works and Government Services be held in contempt? I do not think so, even if, as the House will recall from a couple of years ago, the Leader of the Opposition had difficulty with our stop signs.

At this time of year, we have large groups of tourists visiting the Hill. There are occasions when a bus or car may be held up for two or three minutes while the pedestrians cross the driveway. Should the bus not follow the rules of the road and yield because the privileges for the member for Skeena—Bulkley Valley might be offended? Should the tourists be found to have violated parliamentary privilege? That would be preposterous.

What if the bus stopped at a regular stop on its route to pick up a Liberal member's staffer. Is that momentary delay, because of the bus driver's usual routine, a contempt because the NDP MP was slowed down? No. That would be absurd, despite whatever goodwill still exists between those two parties.

These examples I just offered might seem silly and trifling, but if we consistently find every interruption in a trip to the Centre Block to be a prima facie breach of privilege, it is not hard to see where this reductio ad absurdum could quickly become a standard operating procedure around here. A measured, reasoned perspective is required instead.

In responding to points of order complaining about protests inhibiting access to the Palace of Westminster, Mr. Speaker Thomas, at column 38 of the official report for January 22, 1979, urged members of the United Kingdom's House of Commons to understand that the authorities outside could not be held to an absolute and strict standard. He said:

I think that the House must be reasonable in this matter. Of course, the police have their instructions from this House in the first Sessional Order that we pass, but it is entirely lacking in a sense of fair play and common sense towards those who are dealing with a major problem outside the House to say that under all circumstances they must get that crowd to make way to ensure that hon. Members may come through.

The 2004 report of the procedure and House affairs committee, which I previously cited, also noted in its conclusions that the privilege of access was not an absolutely unqualified right. At the report's 15th paragraph:

We acknowledge that there will be times when access cannot be allowed for anyone for reasons of safety and security or otherwise. The difficulty in this case was that Members were prevented from accessing the Hill, but other persons were allowed through the security cordons.

These sentiments are consistent with what is written in our Australian sister chamber's procedural text, House of Representatives Practice. At page 126, of the sixth edition, it is stated:

Security brings into conflict two principles basic to Parliament’s traditions and usage. On the one hand, there is the undeniable right of people in a parliamentary democracy to observe their Parliament at work and to have reasonable access to their representatives. On the other hand, Members and Senators must be provided with conditions which will enable them to perform their duties in safety and without interference. This is basic to the operation of Parliament and a balance must be struck between these two important principles.

It is further echoed in a discussion paper published January 2015 by our Senate's subcommittee on parliamentary privilege which reads, at page 56 and 57:

One issue that is in constant evolution is that of maintaining security through the Parliament buildings....and the grounds of Parliament....while not unduly limiting parliamentarians’ access to Parliament. While it is within the collective privileges of the Senate and House to administer the security within their zones, the contemporary context may also require collaboration and some compromise.

Later, at page 77, the discussion paper from the other place states:

It is under the authority of the1 Speaker of each House of Parliament and of the Houses of Parliament themselves to address prima facie questions of privilege arising from attempts at obstruction or molestation.

Some forms of physical obstruction, such as security or construction measures, might be necessary for the greater good of Parliament. Parliamentarians should be understanding in cases of reasonable interference or delay. In cases of abuse, however, members may claim a breach of privilege.

All of these passages are urging a balanced, responsible interpretation about privilege, and this begs the question, what is the purpose of the privilege at hand?

It is well established that the House of Commons has the pre-eminent claim to the attendance and services of its members. From that, it follows that a member has the right of access to the House to be able to give his or her attendance and service.

In Thursday's case, the House was not deprived of the attendance and services of the members who were on the shuttle bus in question. Page 2444 and 2445 of the Journals for Thursday confirm that the hon. member for Skeena—Bulkley Valley, along with the three other passengers he named, participated in the vote which took place shortly after 11:45 that morning. As a matter of fact, I spoke with one member who was on that bus and he confirmed to me that not only was he able to make it to Centre Block, but he was able to find time to attend to another matter before he had to be in his seat to vote.

The hon. member for Skeena—Bulkley Valley made reference to his finance committee meeting. According to the minutes of the meeting posted to the parliamentary website, the hon. member was chairing the meeting when the bells to call in the members were rung, at 11:17 a.m., and the committee agreed to continue meeting, pursuant to Standing Order 115(5). That rule reads:

—the Chair of a standing, special, legislative or joint committee shall suspend the meeting when the bells are sounded to call in the Members to a recorded division, unless there is unanimous consent of the members of the committee to continue to sit.

Unanimous consent means that no one present objected, including the hon. member himself. The very reason we have 30-minute bells for virtually every vote is, given how spread out the precinct is now, to allow members a reasonable opportunity to make it to the House, notwithstanding whatever ordinary delays or interruptions might happen during their journey. However, the finance committee, meeting over at the Valour Building, did not adjourn until 11:34 a.m., when there would have been about 13 minutes left to go until the vote.

Now, while I understand that there were very noble and well-intentioned reasons for the finance committee to continue meeting through the bells, and also possibly the vote, in order to take evidence from several witnesses, including two participating by video conference from different European cities, it is not reasonable to hear the hon. member for Skeena—Bulkley Valley complain about a 74-second interruption in his answering the 30-minute bell, after he spent 17 of those 30 minutes keeping a committee meeting going. We have not heard any other member, present at that meeting, rise to seek a contempt finding, I would note.

Finally, this leaves me to want to canvass the motivations of the New Democrats in bringing this issue forward. The deputy leader of the NDP, the hon. member for Hamilton Centre, implored the Chair to make an immediate ruling on Thursday afternoon. It was a point he made three times. For his part, the House leader of the official opposition in turn stood to demand an immediate ruling. No further submissions were needed, implied he. In fact, he was so determined to see the ruling that he later rose and misrepresented the remarks of the Parliamentary Secretary to the Leader of the Government in the House of Commons. The latter, in truth, did not say that there was a breach of privilege, despite the claim of the hon. member for Burnaby—New Westminster.

At its heart, the NDP House leader's agitation was to get a debatable motion placed before the House straightaway, following which “there may be a little further discussion”. Of course, it was no coincidence that the New Democrats were trying to delay and disrupt government orders throughout that day. After all, we witnessed some three dilatory motions, with recorded votes, before we even got to the orders of the day.

Nonetheless, the very next day, in open defiance of the deputy leader and her House leader and their shared view that no further submissions were necessary, the NDP deputy whip rose in the House to offer a submission on this question of privilege. As it would turn out, the New Democrats were again working to filibuster the time provided for government orders. The hon. member for Saint-Lambert rose to make her submissions, unnecessary submissions, as her deputy leader and her House leader would have had it, to run out the clock on the time provided for government business on Friday following a dubious point of order offered by the hon. and learned member for Toronto—Danforth having failed.

Ultimately, what we have here is not some serious, legitimate effort to defend the ancient constitutional privileges of the House of Commons but rather a transparently shameless attempt to cloak petty politics with a high-minded veneer.

Mr. Speaker, it is my respectful view that this is an opportunity for you to lay down clear guidelines as to what sorts of instances will give rise to a prima facie case of privilege in respect of access to the precinct. The existing procedure for raising questions of privilege dates back to 1958, when the then-prevailing approach at Westminster was transplanted here by virtue of the publication of the fourth edition of Beauchesne's Parliamentary Rules and Forms. As O'Brien and Bosc explained at page 1,289,

This description of the British procedure soon became a handy reference seized upon by successive Speakers, beginning with Speaker Michener, as a way to curtail spurious interventions by Members

If we consider the hypothetical examples of green bus delays I offered up a few minutes ago, the effort to curtail spurious interventions might otherwise now be rendered moot. As we can imagine, it is not hard to see how an enterprising member bent on obstruction and delay in this chamber would start making every use of the brakes on a green bus, the Chair's dilemma, and the House's concern. That would just not be appropriate. Momentary delays, such as that witnessed on Thursday, simply do not warrant indulging the possible use of this House's awesome powers in respect of contempt.

There is one last point I want to raise. It is a precedent I received more recently, but it is an old precedent, and it is from the British House. It relates to a ruling on a question of privilege from July 26, 1951. It was a question of a member of Parliament, Mr. John Lewis, the hon. member for Bolton, who had been advised by the whips to come to a vote. On his way, he was interrupted by a police officer, who held him up for reasons of traffic safety. This was off the parliamentary precinct. He made the contention that his rights and privileges were interfered with. He showed the police officer his pass. The police officer was aware that the pass allowed him privileges to arrive and that he had obligations at the House. However, the House, in fact it was the committee, on that occasion and in that instance determined that there was no obstruction of the hon. member in his progress toward the House of Commons. It states:

There was no attempt to delay him deliberately. Any delay which occurred at Victoria Gate was due to congestion of traffic which the two policemen were doing their best to control in such a way as to facilitate progress. The honourable Member was not delayed by P.C. Cordingley's refusal to let him cross Bayswater Road into the Park through Victoria Gate. The honourable Member was delayed by traffic congestion which the police could not immediately remedy. Moreover, less delay would probably have occurred had the honourable Member taken the advice of P.C. Cordingley, D.421, and proceeded along Bayswater Road towards Marble Arch.

There was no delay or obstruction caused by P.C. Dale, A.411, who told the honourable Member to proceed without taking any particulars of name, address, licence and insurance certificate. So far from obstructing the honourable Member, the two policemen acted reasonably and sensibly and did what they could to facilitate the honourable Member's progress towards the House.

The privilege of freedom from obstruction in the coming to or the going from the House derives from the undoubted right of Parliament to the full service of its Members. It is a privilege of the House of Commons and individual Members derive their right from the privileges of the House of Commons as a whole, and the right and need of the House of Commons to protect itself, and in so doing to protect its Members.

It goes on to summarize that privilege, and then it concludes with this finding:

Your Committee have found that there was no obstruction or delay caused by either of the policemen and that no breach of privilege was committed by them or either of them.

I think we have here a prime example that is parallel to our situation, where there was a police officer attempting to manage traffic for safety. The delay was de minimis, as I pointed out.

Therefore, on the motive, the reason for it, the precedents provided there, and of course, its de minimis nature, I think, Mr. Speaker, it is appropriate for you to provide some advice to the House on the level of delay and the level of interference with the ability of that member to access the House that would give rise to a prima facie finding of privilege. However, I would certainly submit that a 74-second delay that did not deny anybody the opportunity to vote constitutes a de minimis delay and is certainly part of what we normally expect in any of our movements around the Hill and the parliamentary precinct in the normal course.

Peter Van Loan

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